Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00318-CR

Dale Allen MINCE,

Appellant

v.

The STATE of 

The STATE of Texas,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court No. 358487

The Honorable Liza Rodriguez, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Catherine Stone, Chief Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: July 17, 2013

AFFIRMED

Appellant Dale Allen Mince challenges his conviction for driving while intoxicated. We 

affirm the judgment of the trial court.

BACKGROUND

Mince was charged with driving while intoxicated with an open container. See TEX. PENAL 

CODE ANN. § 49.04(c) (West Supp. 2012). Mince’s trial counsel filed a pretrial motion to suppress 

evidence based on a faulty affidavit. On September 30, 2011, the trial court held a hearing and 

granted the motion to suppress in a general order. On April 30, 2012, the trial court called the case 
04-12-00318-CR

for trial, revisited its previous ruling on the motion to suppress, and orally clarified that the only 

evidence suppressed was the blood evidence. Mince subsequently entered into a plea agreement 

with the State, pled no contest, and was sentenced to three days’ confinement in the Bexar County 

Jail and a fine in the amount of $150.00, plus court costs. This appeal ensued.

SUPPRESSION ORDER

Mince first argues that the trial court abused its discretion in amending its September 30, 

2011 pretrial order suppressing “all evidence.” Specifically, Mince alleges the written order was 

final and appealable and, thus, it controls over the court’s oral pronouncement made seven months 

later at the beginning of trial. When reviewing a trial court’s ruling on a motion to suppress, we 

apply an abuse of discretion standard and will overturn the trial court’s ruling only if it was so 

arbitrary as to be outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 

922 (Tex. Crim. App. 2011). 

When Mince’s case was initially called for trial on January 24, 2012, the trial court reset 

the matter and indicated it wanted an opportunity to review the transcript of the suppression 

hearing. On April 30, 2012, the case was again called for trial. The trial court explained on the 

record that after reviewing the hearing transcript, the written suppression order was not a clear 

representation of its intent to exclude only the blood evidence. The court further explained that 

the context of the motion to suppress was “whether or not the search warrant was valid for the 

blood evidence” and that “[t]he Court’s intent and the Court’s ruling was with respect to the blood 

evidence.” The court continued, “I was under the impression the entire time that the—that the 

issue at hand was whether or not the blood evidence was admissible, and so my ruling was with 

reference to the blood evidence and nothing else.” The trial court then suppressed the blood 

evidence obtained pursuant to the warrant, but allowed the State to proceed with the case based on 

the other evidence. 

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A pretrial motion to suppress is a specialized objection to the admissibility of the 

designated evidence which may be, but is not required to be, resolved prior to trial. TEX. CODE 

CRIM. PROC. ANN. art. 28.01 (West 2006); Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App.

2012); Gutierrez v. State, 327 S.W.3d 257, 261 (Tex. App.—San Antonio 2010, no pet.). The trial 

court’s pretrial ruling on such a motion to suppress is interlocutory and equally subject to 

reconsideration and revision during trial as any other ruling on the admissibility of evidence under 

Rule 104 of the Texas Rules of Evidence. TEX. R. EVID. 104; Black, 362 S.W.3d at 633 (noting 

court may revisit a ruling under Rule 104 at its discretion, at any time, during the course of trial); 

Gutierrez, 327 S.W.3d at 261. Here, the trial court stated the written pretrial order did not reflect 

its intended ruling on the motion to suppress and made the change necessary to reflect its intended 

ruling at the beginning of trial. Thus, it was the court’s trial ruling, not the previous pretrial ruling, 

on the motion to suppress that controlled the admissibility of the contested blood evidence. See

Gutierrez, 327 S.W.3d at 262.

Mince argues the trial court erroneously modified the suppression order outside of the 

appellate timelines. However, because the trial court had continuing jurisdiction over the case, it 

could properly reconsider, and change, its pretrial suppression order at any time during the course 

of trial. Black, 362 S.W.3d at 633; see also Montalvo v. State, 846 S.W.2d 133, 137-38 (Tex.

App.—Austin 1993, no pet.) (decision to reconsider previous ruling is matter of trial court’s 

discretion). We, therefore, overrule Mince’s first issue.

SUFFICIENCY OF THE EVIDENCE

In Mince’s second issue, he argues the evidence is insufficient to support his conviction 

because all of the evidence was suppressed pursuant to the written pretrial order, and thus there is 

no evidence that can be relied upon to support the judgment. We disagree. First, under Mince’s 

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first issue, we determined that the trial court had discretion and authority to reconsider and clarify 

its pretrial order at trial. Second, by entering a plea of no contest to driving while intoxicated 

pursuant to a plea bargain that was followed by the trial court, Mince waived his right to appeal 

any matter other than the court’s ruling on his pretrial motion to suppress. TEX. R. APP. P.

25.2(a)(2)(A). The trial court’s certification of Mince’s right to appeal provides that the matter “is 

a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and 

not withdrawn or waived, and the defendant has the right of appeal.” Id. Thus, the certification, 

signed by Mince, his trial counsel, and the trial court, notified Mince that his right to appeal was 

limited to the court’s ruling on his motion to suppress. Id. The record does not show that Mince 

obtained the trial court’s permission to appeal any other matter. See TEX. R. APP. P. 25.2(a)(2)(B). 

Therefore, he waived the right to appeal the sufficiency of the evidence to support his conviction. 

Accordingly, we overrule Mince’s second issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In Mince’s final issue, he contends his trial counsel rendered ineffective assistance by 

failing to understand the law regarding written pretrial orders and the court’s ability to make oral 

pronouncements amending those orders, and by failing to properly advise him of such law prior to 

his acceptance of the plea bargain. Mince argues that had he known the trial court erroneously 

changed its pretrial suppression order, and erroneously admitted previously excluded evidence, it 

is “highly unlikely” that he would have accepted the plea bargain. To establish ineffective 

assistance of counsel, an appellant must show his counsel’s performance was deficient, and that 

the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The failure to establish 

either prong of the Strickland standard defeats a claim of ineffective assistance. Thompson, 9 

S.W.3d at 813. Here, Mince argues that his trial counsel was deficient for failing to advise him 

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that the trial court’s written suppression order controlled over its later oral alteration at trial. As 

we held above, the trial court retained the discretionary power to revisit its ruling on the motion to 

suppress at any time prior to or during trial. Black, 362 S.W.3d at 634-35. Therefore, defense 

counsel was not deficient for failing to advise Mince of legal principles that are not correct. Having 

failed to prove his counsel’s performance was deficient, Mince has failed to establish ineffective 

assistance of counsel. Accordingly, we overrule Mince’s third issue.

Based on the foregoing reasons, we affirm the judgment of the trial court.

Rebeca C. Martinez, Justice

Do not publish

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